The Pre-Election State of FOI in the UK

9 October 2014

By Paul Gibbons

The author writes the FOIMan website where this article was published Oct. 8.

It seems like only yesterday that I coined the hashtag #saveFOI when, provoked by the launch of the government’s post-legislative scrutiny, it seemed that everybody and their uncle wanted to pile in with their FOI horror stories. And a few months later I was – largely – relieved to find that despite the naysayers, the Justice Select Committee had recommended few changes to the Act. Indeed they had focused on its achievement as “a significant enhancement of our democracy”.

The attacks, of course, have not gone away. Whether it be dragons or criminals attempting to give bananas the slip, some public authorities have been keen to bring FOI into disrepute. Their hope is that these stories will make it politically acceptable for the government to weaken our right to know.

Dangerous Times

And these are dangerous times for constitutional rights, of which I count FOI as one. We’ve seen that the Conservative Party is keen to dismantle the current human rights infrastructure, apparently because the government hasn’t got its way over one or two decisions made by the European Court of Human Rights. If human rights aren’t safe, it’s a fair question to ask if other rights – less complicated to remove or weaken – will also come under renewed attack. And from whom?

The most pressing threat is the possibility that the government might – as it proposed to do in its response to the post-legislative scrutiny – amend the FOI fees regulations to make it easier to refuse requests. However, a recent interview with the Minister for FOI, Liberal Democrat Simon Hughes, appears to suggest that the threat has been stayed somewhat. Mr Hughes indicated that a consultation on this is likely before the 2015 election, but actual changes were unlikely until after then. It appeared from the interview that the two parties in government were failing even to agree on the content of the consultation. So even that is in doubt.

Threat to ICO Funding

Another significant threat is the failure to properly fund the Information Commissioner’s Office. As I’ve previously highlighted, Christopher Graham himself has indicated that FOI enforcement is at risk without a new settlement. The ideal solution would be to find a way to independently fund the Commissioner’s work, rather than him having to go cap in hand to a government department that he often has to rule against.

It is entirely possible that a new government next May could find other ways to undermine FOI. As the last party conference season before the general election has come to its conclusion, what can we say about how safe – or otherwise – our right to know will be next year?

First of all, it’s not unreasonable to be sceptical about any of the parties that are likely to form a government next year. At various points they have all exhibited ambiguous attitudes to the legislation, especially when in government. But I do think we can draw some conclusions. Let’s take each of the main parties in turn.

Labour Leader Sounds Positive

The Labour Party, of course, introduced the Freedom of Information Act whilst in power. But famously the Prime Minister of the time has expressed his regret, believing it (with the ban on fox hunting) to be one of his two worst decisions. It’s been repeated enough now for us not to choke on our tea with the irony. However, the current Shadow Justice Secretary, Sadiq Khan, has made several positive noises about FOI, including vowing that it will be extended to private companies that provide public services – a promise repeated during the Labour Party Conference in September. This doesn’t mean that a Labour government with a healthy majority won’t lose its enthusiasm for the right to know once in power, but at least Mr Khan appears to be proud of his party’s part in the story of FOI rather than considering himself to be a nincompoop.

Liberal Dems Best FOI Allies

Simon Hughes’ conference speech this week claimed that the Liberal Democrats were trying to extend FOI now. His speech, as well as the interview with Martin Rosenbaum mentioned above, hints that the junior party in the current coalition has protected FOI from their partners in government. In this context it is worth noting that many observers were surprised at the relatively positive conclusion to the post-legislative scrutiny. It seems plausible that this was as a result of the canny chairmanship of Sir Alan Beith, a Liberal Democrat. My sense is that broadly speaking FOI is safest with Liberal Democrat involvement in government.

Conservatives Unenthusiastic

What about the Conservatives? They don’t appear to have said much at their conference on the subject. But in the past their leader has expressed his irritation with FOIs “furring up the arteries” of government. His idea of “real FOI” is government deciding what you should be allowed to see. That phrase was echoed last week when the Conservatives talked about “real human rights”.

Not all Conservatives are enemies of FOI though. Eric Pickles has criticised local authorities who moan about their FOI obligations. Overall though – and looking back at the evidence given to the post-legislative scrutiny in 2012, and the MPs who appeared most skeptical – I don’t sense much enthusiasm for FOI in the Conservative Party (aside from when they were out of power when they used it enthusiastically, of course).

So there we are. It would appear that FOI would be safest with Labour or the Liberal Democrats (and most safe with both). Of course, we’ll know more when party manifestos are issued early next year. Maybe the Conservatives will prove me wrong by offering to protect and extend FOI in the next Parliament.